S.N. Pathak, J. - (1.) Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure, the petitioner has approached this Court for quashing of the order taking cognizance dated 20.12.2013 passed by learned Sub Divisional Judicial Magistrate, Latehar in Complaint Case No.161 of 2011 whereby and where under cognizance of the offences under Sections 302, 201/34 of the Indian Penal Code has been taken against the petitioners and further to quash the entire subsequent proceedings of the case so far as the petitioners are concerned.
(2.) The facts, which are relevant in this case, in short, is that initially on the basis of information given by the informant/complainant, a formal F.I.R. was lodged as Balumath P.S. Case No.84 of 2010 corresponding to G.R. No.425 of 2010 under Sections 302, 201/34 of the Indian Penal Code against the petitioners and two others. After completion of investigation, the Investigating Officer submitted final form in favour of the petitioners and two others showing lack of evidence against them. Thereafter, on 11.01.2011, the complainant/O.P. No.2 filed a protest petition in the court of learned Chief Judicial Magistrate, Latehar which was accepted vide order dated 07.08.2011 and was treated to be a fresh complaint and was registered as Complaint Case No.161 of 2011. The prosecution case based on the Protest Petition alleging interalia is that on 29.06.2010 at about 8.00 p.m., the complainant's son namely Bablu Nayak (deceased) was in his house. The petitioner no.1 came to his house and called Bablu Nayak out of the house for some work in the house of petitioner no.1. Thereafter, when Bablu Nayak did not return to his house, the wife of the complainant went to the house of the petitioner no.1 where she saw the accused persons including the petitioner sitting in the house and talking to each other. On arrival of the wife of the complainant they became silent. The petitioner no.1 told her that he has already taken her son to her house and he will reach soon. The wife of the complainant returned to her house, but her son did not come to her house. In the morning, the complainant came to know that his son is lying dead in a well. Thereafter, with the help of villagers, the dead body was taken out from the well. The complainant saw injury on the head of the deceased and marks on his neck. In the meantime, the accused persons also reached there and said that the incident has taken place due to darkness. Thereafter, the dead body was buried in the earth. The complainant was in Kolkata on the day of occurrence and he was informed by Ganesh Nayak on telephone. The complainant returned from Kolkata to his house on 01.07.2010 at 5.00 p.m. and he attempted to exhume the dead body for cremation, but the accused persons forbade him to do so. The complainant suspected that the accused person have killed the deceased and have thrown the dead body in the well. The complainant took out the dead body from the burial and did funeral of the dead body. After recording the statements of the complainant/O.P. No.2 on solemn affirmation and statements of the enquiry witnesses under Section 202 of the Code of Criminal Procedure, the learned Sub Divisional Judicial Magistrate, Latehar by his order dated 20.12.2013 passed in Complainant Case No.161 of 2011 took cognizance of the offence under Sections 302/201/34 of the Indian Penal Code against the petitioners and one Ali Hasan.
(3.) Learned counsel for the petitioner submitted that the petitioners are wholly innocent and have committed no offence under Sections 302/201/34 of the Indian Penal Code and as such no case is made out against the petitioners in the facts and circumstances of the case. There is no circumstantial evidence against the petitioners suggesting that the deceased was killed by the petitioners. There is no material in the entire records of the case as to how the death of the deceased occurred. Learned counsel for the petitioners further submitted that there is previous enmity of the petitioners with the complainant on account of long existing land disputes. Both the inquiry witnesses i.e. mother and sister of the deceased are hearsay witnesses and hence, their evidences are not sufficient to proceed against the petitioners.;